B-2255, MARCH 21, 1939, 18 COMP. GEN. 741

B-2255: Mar 21, 1939

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IS NECESSARILY DEPENDENT UPON THE STATUTES WHICH MAY THEN BE IN FORCE AND FOR DETERMINATION BY THE OFFICIAL WHO THEN MAY HAVE JURISDICTION UNDER THE LAW. 1939: I HAVE YOUR LETTER OF MARCH 9. WAS RETIRED FROM THE AMERICAN FOREIGN SERVICE ON NOVEMBER 1. WAS RETIRED FROM THE AMERICAN FOREIGN SERVICE ON OCTOBER 1. IN THE EVENT HE ACCEPTS EMPLOYMENT IN THE EXECUTIVE CIVIL SERVICE AND HIS ANNUITY AS A RETIRED FOREIGN SERVICE OFFICER IS CONSEQUENTLY DISCONTINUED DURING THE PERIOD OF SUCH EMPLOYMENT. THE PRINCIPLE THAT A FOREIGN SERVICE OFFICER WHO HAS BEEN RETIRED FOR REASONS OTHER THAN AGE MAY NOT RECEIVE RETIREMENT ANNUITY CONCURRENTLY WITH SALARY FOR REEMPLOYMENT IN THE EXECUTIVE CIVIL SERVICE SUBSEQUENT TO RETIREMENT IS WELL UNDERSTOOD FROM YOUR DECISION A-61967 OF AUGUST 6.

B-2255, MARCH 21, 1939, 18 COMP. GEN. 741

RETIREMENT - FOREIGN SERVICE - REEMPLOYMENT - ANNUITY AND RETIREMENT STATUS THE ACCEPTANCE OF POSITIONS IN THE EXECUTIVE CIVIL SERVICE BY FOREIGN SERVICE OFFICERS RETIRED AFTER 30 YEARS' SERVICE, OR FOR DISABILITY, UNDER SECTIONS 26 (D) AND 26 (J), RESPECTIVELY, OF THE FOREIGN SERVICE ACT OF FEBRUARY 23, 1931, 46 STAT. 1211 AND 1212, HAS THE EFFECT OF SUSPENDING THE RIGHT TO RECEIVE THE RETIREMENT ANNUITY WHILE RECEIVING ACTIVE-SERVICE PAY IN THE CIVILIAN POSITION, BUT DOES NOT NECESSARILY CONTROL THE RETIREMENT STATUS OF THE OFFICERS AFTER TERMINATION OF THEIR ACTIVE SERVICE, AND RESUMPTION OF ANNUITY PAYMENTS, WHILE NOT BEING PRECLUDED UNDER THE PRESENT LAWS AND CIRCUMSTANCES, IS NECESSARILY DEPENDENT UPON THE STATUTES WHICH MAY THEN BE IN FORCE AND FOR DETERMINATION BY THE OFFICIAL WHO THEN MAY HAVE JURISDICTION UNDER THE LAW.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, MARCH 21, 1939:

I HAVE YOUR LETTER OF MARCH 9, 1939, AS FOLLOWS:

UNDER THE PROVISIONS OF SECTION 26 (D) OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1211, MR. ALEXANDER P. CRUGER, AN AMERICAN FOREIGN SERVICE OFFICER OF CLASS VII, WAS RETIRED FROM THE AMERICAN FOREIGN SERVICE ON NOVEMBER 1, 1938, ON THE BASIS OF THIRTY YEARS OF SERVICE, ON AN ANNUITY OF $2,115.57.

UNDER THE PROVISIONS OF SECTION 26 (J) OF THE ACT OF FEBRUARY 23, 1931, MR. CARL O. SPAMER, AN AMERICAN FOREIGN SERVICE OFFICER OF CLASS VI, WAS RETIRED FROM THE AMERICAN FOREIGN SERVICE ON OCTOBER 1, 1936, FOR DISABILITY, ON AN ANNUITY OF $1,817.33.

EACH OF THESE OFFICERS NOW ON THE RETIRED LIST HAS PRESENTED FOR CONSIDERATION THE QUESTION WHETHER, IN THE EVENT HE ACCEPTS EMPLOYMENT IN THE EXECUTIVE CIVIL SERVICE AND HIS ANNUITY AS A RETIRED FOREIGN SERVICE OFFICER IS CONSEQUENTLY DISCONTINUED DURING THE PERIOD OF SUCH EMPLOYMENT, HE CAN, UPON TERMINATION OF THIS EMPLOYMENT, BE RESTORED TO FULL STATUS AS A RETIRED FOREIGN SERVICE OFFICER AND ENJOY AGAIN THE BENEFITS OF THE ANNUITY WHICH HE RECEIVED PRIOR TO HIS EMPLOYMENT IN ANOTHER BRANCH OF THE GOVERNMENT SERVICE.

THE PRINCIPLE THAT A FOREIGN SERVICE OFFICER WHO HAS BEEN RETIRED FOR REASONS OTHER THAN AGE MAY NOT RECEIVE RETIREMENT ANNUITY CONCURRENTLY WITH SALARY FOR REEMPLOYMENT IN THE EXECUTIVE CIVIL SERVICE SUBSEQUENT TO RETIREMENT IS WELL UNDERSTOOD FROM YOUR DECISION A-61967 OF AUGUST 6, 1936, TO THE PRESIDENT OF THE UNITED STATES CIVIL SERVICE COMMISSION, IN THE CASE OF MR. WILLIAM W. BRUNSWICK, A RETIRED AMERICAN FOREIGN SERVICE OFFICER WHOSE RETIREMENT ANNUITY WAS DISCONTINUED BY REASON OF THE ACCEPTANCE BY MR. BRUNSWICK OF EMPLOYMENT IN THE EXECUTIVE CIVIL SERVICE.

THERE IS FOR DECISION THE QUESTION WHETHER AN AMERICAN FOREIGN SERVICE OFFICER WHO HAS BEEN RETIRED FOR REASONS OTHER THAN AGE, AND WHO HAS RELINQUISHED HIS RETIREMENT ANNUITY DURING PERIODS OF EMPLOYMENT IN THE EXECUTIVE CIVIL SERVICE SUBSEQUENT TO RETIREMENT, MAY HAVE RESTORED TO HIM UPON TERMINATION OF SUCH EMPLOYMENT THE RETIREMENT ANNUITY WHICH HE WAS RECEIVING AS A RETIRED FOREIGN SERVICE OFFICER.

I SHALL APPRECIATE A RULING ON THIS POINT AT YOUR EARLIEST CONVENIENCE.

SUBSECTIONS (D) AND (J) OF SECTION 26 OF THE FOREIGN SERVICE RETIREMENT ACT OF FEBRUARY 23, 1931, 46 STAT. 1211 AND 1212, PROVIDE AS FOLLOWS:

(D) WHEN ANY FOREIGN SERVICE OFFICER HAS REACHED THE AGE OF SIXTY FIVE YEARS AND RENDERED AT LEAST FIFTEEN YEARS OF SERVICE HE SHALL BE RETIRED: PROVIDED, THAT IF ANY SUCH OFFICER SHALL HAVE SERVED THIRTY YEARS HE MAY BE RETIRED AT HIS OWN REQUEST BEFORE REACHING THE AGE OF SIXTY-FIVE YEARS: PROVIDED FURTHER, THAT THE PRESIDENT MAY IN HIS DISCRETION RETAIN ANY SUCH OFFICER ON ACTIVE DUTY FOR SUCH PERIOD PRIOR TO HIS REACHING SEVENTY YEARS OF AGE AS HE MAY DEEM FOR THE INTERESTS OF THE UNITED STATES.

(J) THAT ANY FOREIGN SERVICE OFFICER WHO, BEFORE REACHING THE AGE OF RETIREMENT BECOMES TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE BY REASON OF DISEASE OR INJURY NOT DUE TO VICIOUS HABITS, INTEMPERANCE, OR WILLFUL MISCONDUCT ON HIS PART, SHALL, UPON HIS OWN APPLICATION OR UPON ORDER OF THE PRESIDENT, BE RETIRED ON AN ANNUITY UNDER PARAGRAPH (E) OF THIS SECTION: PROVIDED, HOWEVER, THAT IN EACH CASE SUCH DISABILITY SHALL BE DETERMINED BY THE REPORT OF A DULY QUALIFIED PHYSICIAN OR SURGEON DESIGNATED BY THE SECRETARY OF STATE TO CONDUCT THE EXAMINATION: PROVIDED FURTHER, THAT UNLESS THE DISABILITY BE PERMANENT, A LIKE EXAMINATION SHALL BE MADE ANNUALLY IN ORDER TO DETERMINE THE DEGREE OF DISABILITY, AND THE PAYMENT OF ANNUITY SHALL CEASE FROM THE DATE OF THE MEDICAL EXAMINATION SHOWING RECOVERY.

FEES FOR EXAMINATIONS UNDER THIS PROVISION, TOGETHER WITH REASONABLE TRAVELING AND OTHER EXPENSES INCURRED IN ORDER TO SUBMIT TO EXAMINATION, SHALL BE PAID OUT OF THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND.

WHEN THE ANNUITY IS DISCONTINUED UNDER THIS PROVISION BEFORE THE ANNUITANT HAS RECEIVED A SUM EQUAL TO THE TOTAL AMOUNT OF HIS CONTRIBUTIONS, WITH ACCRUED INTEREST, THE DIFFERENCE SHALL BE PAID TO HIM OR TO HIS LEGAL REPRESENTATIVES.

THE RULE STATED BY THIS OFFICE IN THE DECISION OF AUGUST 6, 1936, 16 COMP. GEN. 121, IN THE BRUNSWICK CASE TO WHICH YOU REFER AND WHICH WAS THE SUBJECT OF LITIGATION--- CASE NO. 7137, BRUNSWICK VS. ELLIOTT, DECIDED FEBRUARY 20, 1939, BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA--- INVOLVING A RETIRED FOREIGN SERVICE OFFICER, AND WHICH RULE HAS BEEN STATED IN A NUMBER OF OTHER DECISIONS OF THIS OFFICE INVOLVING RETIRED CIVILIAN PERSONNEL OTHER THAN FOREIGN SERVICE OFFICERS (SEE 10 COMP. GEN. 309; 13 ID. 54; ID. 133; 14 ID. 285; ID. 425; 15 ID. 1093) PROHIBITING THE PAYMENT OF RETIREMENT ANNUITY AND ACTIVE-SERVICE PAY IN A POSITION IN THE EXECUTIVE CIVIL SERVICE DURING THE SAME PERIOD OF TIME, HAS THE EFFECT OF SUSPENDING THE RIGHT TO RECEIVE THE RETIREMENT ANNUITY WHILE RECEIVING ACTIVE-SERVICE PAY IN A CIVILIAN POSITION, BUT DOES NOT NECESSARILY CONTROL THE RETIREMENT STATUS OF A FOREIGN SERVICE OFFICER AFTER TERMINATION OF HIS EMPLOYMENT IN ACTIVE SERVICE IN THE CIVILIAN POSITION. SEE 14 COMP. GEN. 586, 589.

THIS OFFICE CANNOT, OF COURSE, UNDERTAKE TO DECIDE AT THIS TIME WHAT THE RETIREMENT STATUS OF EITHER OF THE OFFICERS MENTIONED IN YOUR LETTER MAY BE AT THE EXPIRATION OF ANY ACTIVE SERVICE WHICH MAY BE ACCEPTED IN A POSITION IN THE EXECUTIVE CIVIL SERVICE. SUCH QUESTION WILL BE FOR DETERMINATION UNDER THE STATUTES WHICH MAY BE THEN IN FORCE AND BY THE OFFICIAL WHO THEN MAY HAVE JURISDICTION UNDER THE LAW TO MAKE SUCH DETERMINATION. HOWEVER, I MAY STATE FOR YOUR INFORMATION THAT I FIND NOTHING IN EITHER OF THE QUOTED PROVISIONS OF THE FOREIGN SERVICE RETIREMENT ACT OR OTHERWISE IN ANY EXISTING STATUTE WHICH WOULD APPEAR TO PRECLUDE RESTORATION OF RETIREMENT ANNUITY IN SUCH CASES AS ARE MENTIONED IN YOUR LETTER UPON CESSATION OF PAYMENTS FOR ACTIVE SERVICE IN A POSITION IN THE EXECUTIVE CIVIL SERVICE UNDER THE CIRCUMSTANCES STATED.